Citation Nr: 0702438
Decision Date: 01/26/07 Archive Date: 01/31/07
DOCKET NO. 05-14 831 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina
THE ISSUES
1. Entitlement to service connection for diabetes mellitus,
also due to Agent Orange exposure.
2. Entitlement to service connection post-traumatic stress
disorder, also claimed as depression.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
G. Jivens-McRae, Counsel
INTRODUCTION
The veteran served on active duty from September 1967 to
March 1971. He served in Vietnam from March 1968 to March
1969 and again from April 1970 t March 1971.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from the Columbia, South Carolina,
Department of Veterans Affairs (VA) Regional Office (RO),
which denied service connection for diabetes mellitus, also
due to Agent Orange exposure and service connection for PTSD,
also claimed as depression.
The veteran testified at a Travel Board hearing before the
undersigned Acting Veterans Law Judge (VLJ) in July 2006. A
transcript of that hearing is of record and associated with
the claims folder.
The issue of service connection for PTSD, also claimed as
depression, being remanded is addressed in the REMAND portion
of the decision below and is REMANDED to the RO via the
Appeals Management Center (AMC), in Washington, DC.
FINDING OF FACT
On July 10, 2006, prior to the promulgation of a decision in
the appeal, the Board received notification from the
appellant that a withdrawal of his appeal of service
connection for diabetes mellitus, also due to Agent Orange
exposure, is requested.
CONCLUSION OF LAW
The criteria for withdrawal of a Substantive Appeal by the
appellant for service connection for diabetes mellitus, also
due to Agent Orange exposure, have been met. 38 U.S.C.A.
§ 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204
(2006).
REASONS AND BASES FOR FINDING AND CONCLUSION
Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal
which fails to allege specific error of fact or law in the
determination being appealed. A Substantive Appeal may be
withdrawn in writing at any time before the Board promulgates
a decision. 38 C.F.R. § 20.202 (2006). Withdrawal may be
made by the appellant or by his or her authorized
representative. 38 C.F.R. § 20.204 (2006). The appellant
has withdrawn his appeal of service connection for diabetes
mellitus, also due to Agent Orange exposure, and, hence,
there remain no allegations of errors of fact or law for
appellate consideration. Accordingly, the Board does not
have jurisdiction to review this appeal and it is dismissed.
ORDER
The appeal of service connection for diabetes mellitus also
due to Agent Orange exposure, is dismissed
REMAND
The veteran claimed, in essence, that service connection is
warranted for PTSD, also claimed as depression, based upon
service incurrence. The veteran has indicated that his
claimed PTSD is a result of witnessing 29 bodies of members
of the 101st Airborne division when he reported to sick call.
He also indicated that an Air Force serviceman was killed in
his barracks. He did not know the name of any of these
personnel, but indicated that their deaths affected him. No
attempt has been made to verify either of these claimed
stressors. According to 38 C.F.R. § 3.304(e), PTSD requires
medical evidence diagnosing the condition in accordance with
4.125(a) of this chapter; a link, established by medical
evidence, between current symptoms and an in-service
stressor; and credible supporting evidence that the claimed
in-service stressor occurred. The veteran has been diagnosed
with PTSD; however, the claimed stressors have not been
verified. The veteran should be asked to provide all
pertinent evidence to verify his stressors, to include the
date of the Air Force serviceman's death , the approximate
date that he saw the large number of bodies of the 101st
Airborne, and the specific locations. The RO should then
submit that evidence to the U. S. Army and Joint Services
Records Research Center (JSRRC). If verified, the veteran
should then be provided a VA psychiatric examination.
Finally, during the pendency of this appeal, on
March 3, 2006, the Court issued a decision in the
consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet.
App. 473 (2006), which held that the VCAA notice requirements
of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to
all five elements of a service connection claim.
Additionally, this notice must include notice of the type of
evidence necessary to receive a higher disability rating, as
well as notice of the type of evidence necessary for the
assignment of an effective date if a higher rating is
awarded. In the present appeal, the veteran was not provided
with notice of the type of evidence necessary to establish a
disability rating or effective date for the disability on
appeal.
Based on the foregoing, additional development is necessary
prior to final disposition of this claim. Accordingly, this
matter is REMANDED for the following:
1. Send the veteran a corrective VCAA
notice under 38 U.S.C.A. § 5103(a) and
38 C.F.R. § 3.159(b), that includes an
explanation as to the information or
evidence needed to establish a disability
rating and an effective date for the
claim for service connection for PTSD,
also claimed as depression, on appeal, as
outlined by the Court in Dingess/Hartmann
v. Nicholson, 19 Vet. App. 473 (2006).
2. The RO should contact the veteran and
ask him to specifically provide the date
of the Air Force serviceman's death
killed in his barracks, and the
approximate date that he went to sick
call and witnessed the bodies of 29
servicemen from the 101st Airborne
Division. He should also provide the
name of the unit that he was attached.
Contact the U. S. Army and Joint Services
Records Research Center (JSRRC) and other
appropriate agency(ies) and request any
available operational reports reflecting
the death of the Air Force serviceman
killed in the veteran's barracks, and the
death of approximately 29 members of the
101st Airborne Division. The veteran is
advised that information is necessary to
obtain supportive evidence of the
stressful events, and that if he has
additional helpful information, he must
be as specific as possible to facilitate
a search for verifying information.
3. If, and only if, an alleged stressful
event is verified, the veteran should
then be scheduled for a VA psychiatric
examination. Any stressors that have
been verified should be made known to the
examiner. The psychiatrist should then
render an opinion as to whether the
veteran currently suffers from PTSD, or
claimed depression, resulting from a
verified experience occurring during
service. It should be stated whether
that current diagnosis of PTSD is linked
to a specific corroborated stressor event
or events experienced during service
pursuant to the diagnostic criteria set
forth in the DSM-IV. If a diagnosis of
PTSD is rendered, the examiner should
specify the stressor(s) upon which the
diagnosis is based. If depression is
diagnosed, it should be opined whether it
is at least as likely as not the result
of the veteran's active duty service.
The claims file should be made available
to the examiner.
4 Readjudicate the veteran's claim for
service connection for PTSD, also claimed
as depression, to include consideration
of all additional evidence received. If
the benefits sought on appeal remain
denied, the veteran should be provided a
Supplemental Statement of the Case. An
appropriate period of time should be
allowed for response.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).
______________________________________________
C. TRUEBA
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs